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Sunday, August 20, 2017

As Robert Mueller pursues a wide-ranging investigation aimed at Donald Trump, members of Trump’s family, his appointees, and his political associates, the president’s legal advisers have answered by attacking the legitimacy and fairness of the special counsel — which may be the prelude to executive action.

Surely, a fearful Trump is contemplating how to rid himself of the former FBI director now overseeing the probe into Russia’s interference with the 2016 election. Within the past few days, the president has openly warned Mueller that he deems any examination of the Trump Organization’s business dealings to be a “violation” of the special counsel’s mandate. Meanwhile the White House complains that Mueller and his staff are “partisan” and biased against Trump. And it is all fair play, according to Trump’s friends in right-wing media, because the Clinton White House and its allies criticized independent counsel Kenneth Starr during the Whitewater and Lewinsky investigations.

Nobody can deny that the Trump White House has every right to examine the record of Mueller and his staff and raise questions about them on the press dais, on Twitter, and possibly in court. But no comparison between Mueller and Starr will survive even cursory inspection.

An outstanding nonpartisan attorney with a sterling career in law enforcement, Mueller was asked to serve as special counsel by deputy attorney general Rod Rosenstein, whose own appointment was approved by the president.

Starr was a distinguished lawyer and former judge, but his partisan coloration was unmistakable. He had served in the Reagan Justice Department and as Solicitor General under President George H.W. Bush, who had considered him for a Supreme Court nomination; he had donated and raised funds for Republican candidates; he had served as a stalwart of the Federalist Society, the high-powered organization of right-wing Republican lawyers; and he had nearly run for the U.S. Senate from Virginia in the 1994 Republican primary.

 

Unlike Mueller’s appointment, which was praised almost universally by Republicans and Democrats alike, the naming of Starr as independent counsel was tainted from the beginning.

Starr replaced the first Whitewater independent counsel, Robert B. Fiske, Jr. — a former Federal prosecutor and a moderate New York Republican, who had rejected the wilder conspiracy theories about the Clintons, including insinuations of foul play in the 1993 suicide of White House deputy counsel Vince Foster. Indeed, he appeared to be moving briskly toward the Clintons’ inevitable exoneration in Whitewater. (Unlike the Russia investigation, the Whitewater “scandal” and its offshoots were truly fake news.)

Outraged Republicans in Congress and the media roared for Fiske’s removal — and the panel of three Republican federal judges that controlled appointments under the old Independent Counsel Act obligingly forced him to step down. One of those judges, David Sentelle of North Carolina, had even met with his home state’s Republican Senators Lauch Faircloth and Jesse Helms in July 1994 to discuss the replacement of Fiske. Three weeks later, the deed was officially done — and Starr became the new Whitewater independent counsel.

For reasons beyond the unethical maneuvering that removed his predecessor, Starr was a controversial choice. Lacking any background as a prosecutor, his partisan credentials appeared to be his only qualification for the job. He proceeded to hire experienced but highly partisan prosecutors as his deputies, notably Hickman Ewing, Jr., former U.S. Attorney in Tennessee, where he cultivated close ties to the religious right; and Jackie Bennett, former U.S. Attorney in south Texas, where he had pursued Democratic officeholders aggressively. Eventually Starr hired a few Democratic deputies, but Republicans set the legal agenda and hostile tone of the Office of Independent Counsel.

Unlike Mueller, who resigned from a lucrative partnership at Wilmer Hale immediately following his appointment as special counsel, Starr not only failed to resign from Kirkland & Ellis, but continued to receive payments as a senior partner, serve on the firm’s management committee, and advise clients. His partnership draw from the powerhouse law firm was then estimated at around $1 million annually.

His self-serving decision instantly drew attention to several stark conflicts of interest, including Starr’s appellate work on behalf of major tobacco companies in litigation with the Clinton administration; his role representing the state of Wisconsin in a school-voucher case against the Clinton administration, for which he he had received payment from a right-wing foundation; and his legal advice to a conservative women’s group in support of the Paula Jones lawsuit against President Clinton.

Perhaps Starr’s most blatant legal conflict — revealed in a 1996 article for The Nation magazine that I co-authored with Murray Waas — involved the Resolution Trust Corporation, a federal corporation set up in 1989 to liquidate the assets of thrift institutions that had failed in the savings-and-loan financial crisis. At the same time the RTC was suing Kirkland & Ellis over its representation of a failed Colorado thrift called First America, Starr opened an independent counsel investigation of the RTC and several of its officials as part of the Whitewater investigation.

More than a year later, when the RTC settled its action against Starr’s law firm for approximately one-third of its initial claim, Kirkland & Ellis insisted on a strict secrecy clause in the settlement agreement — presumably to save the firm and its star partner from the embarrassment of exposure.

Ultimately Starr was cleared by his well paid “ethics adviser,” and although the New York Times published a scolding editorial about his myriad conflicts, he suffered no consequences at all. Later still, even more troubling conflicts emerged, concerning the independent counsel’s tangled connections with billionaire Richard Mellon Scaife, secret financier of the anti-Clinton “Arkansas Project.” Yet these ongoing exposures scarcely hindered Starr’s pursuit of the Clintons, which continued for almost seven years.

So when Trump advisers bark indignantly about Mueller’s supposed “conflict” over a membership fee dispute with a golf course owned by the president — a dispute that Mueller denies even occurred — it is difficult not to laugh.

Yet the legacy of the Starr investigation could still provide important guidance to both the special counsel and the Trump White House.

In 1998, the independent counsel commissioned an exhaustive legal research memo that was buried for almost 20 years, until the National Archives disclosed it in response to a Freedom of Information Act request by the New York Times.

According to that 56-page document — authored by conservative legal scholar Ronald Rotunda — the president of the United States is not immune from federal prosecution and is indeed subject to indictment by a grand jury “for serious criminal acts that are not part of, and are contrary to, the president’s official duties.”

He can’t say he wasn’t warned.

IMAGE: Kenneth Starr speaks on behalf of California’s anti-gay marriage Proposition 8 during arguments before the California Supreme Court,  March 5, 2009. REUTERS/Paul Sakuma

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